When Bad Gun Accidents Happen to Good Gun People by Lyn Bates

“Sara" (not her real name) has had a license to carry concealed firearms in Massachusetts for more than 10 years, and, having a job that often requires her to be out after dark in remote parking lots, she long ago made the decision to carry a gun. She got plenty of training, much more than is required by state law, and after trying several methods of concealed carry, settled on a gun purse as the best compromise between concealment and speed of access.

For more than a decade, her Ruger SP101 revolver, loaded with .357 Magnum rounds, went with her virtually everywhere in a large black leather Guardian Leather purse, the "Classic" model. When one purse became too worn to carry, she got another exactly the same, so she would not have to change her carrying tactics.

Meanwhile, the Massachusetts state legislature passed a law a few years ago (G.L. chapter 140, section 131L, available at www.mass.gov/legis/laws/mgl/140-131l.htm) requiring that all firearms, rifles and shotguns be locked up when they are stored. The law specifies that all weapons must be "secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device." The law also says that a weapon "shall not be deemed stored or kept if carried by or under the control of the owner."

Sara was aware of the law and fully complied with it by putting her purse inside her securely locked bedroom every night. In effect, the lock made the whole bedroom into a large, locked safe storage container. In the morning, she would unlock the door, take her purse with her, and go on her way. As she was leaving home, she would often check the Velcro closure and even give it a squeeze to make sure it was firmly closed.

What happened?

On a Thursday evening in early May of 2004, Sara attended a hobbyist meeting in a small town in southeastern Massachusetts, a town many miles from her own. She had, in addition to her purse, lots of equipment to carry to the event. After it was over, she carried everything back to her car in the parking lot, chatted with friends for a few minutes, and drove home. At home, she went through her usual evening routine of locking up her purse.

On Friday, she went to work with her purse, as usual. Over the weekend, she drove to an event in New Hampshire, taking her purse with her because she has a valid firearms license for New Hampshire as well as Massachusetts.

On Monday morning, Sara got a phone call from a Detective in the small town's police department. "Do you own a Ruger?" he asked. She acknowledged that she did. "It was found on the ground in a parking lot here," he said. In an instant, as she suddenly went cold, Sara's world changed.

She was charged, under Massachusetts law, with improper storage of a firearm. Penalties under that law vary depending on the type of weapon, but for Sara's revolver, she could be fined up to $5,000 and imprisoned up to one year.

Her home town police were notified of the incident, and they immediately suspended Sara's license and confiscated the rest of her guns. Knowing that in Massachusetts she would need expert legal help, Sara asked around and engaged as her lawyer Jesse Cohen, recommended by GOAL, the Gun Owner's Action League. She also asked me to help her.

Was the purse at fault?

My first thought was that perhaps the purse somehow failed, so it was examined closely. The bag has an internal holster that closes over the backstrap of the gun with Velcro, and also has a long Velcro closure along the side of the gun compartment. Though the purse was obviously long-used and considerably worn, both Velcro attachments still functioned well. They did not show the lack of stick-together that Velcro sometimes gets over time if dirt and lint have been allowed to accumulate in it.

The manufacturer of this particular purse is no longer in business, so it was not possible to inquire whether the purse maker knew of any similar problems. I asked many friends, acquaintances, and people in the gun industry, trying to ascertain whether anyone else had ever heard of a gun falling out of a purse specifically designed to hold a firearm. I was able to turn up exactly zero cases.

There are plenty of stories of police and private citizens having guns drop unexpectedly out of other kinds of holsters (including one infamous Michigan State Representative whose gun fell out onto the floor during a legislative caucus meeting). But holster purses, whether closed with Velcro or a zipper, appear to be one of the most secure methods of holding a concealed firearm.

How did the gun fall out?

Here is what I think may have happened. The gun's holster sat in the middle of the purse, sandwiched between two compartments that were used to carry "normal purse stuff" and separated from them by a layer of leather. While normal purse contents could not directly touch the gun, they could bump it through the walls that divided the purse into compartments. Because Sara left the gun in her purse at all times - which was perfectly legal since she locked up her whole purse at night - the gun may have, over a period of weeks or even months gradually worked its way out of the internal holster's Velcro as a result of being repeatedly bumped by the contents of the two purse compartments.

Once the gun had worked free of the internal holster, the same kind of action could have gradually worked the butt of the gun against the Velcro at the side of the purse. On that May evening, in the parking lot, something could have bumped the purse or pulled at it, and the last bit of Velcro gave just enough for the gun to fall out.

This is what I would call a "pure accident," that had several contributing factors, none of which is solely the cause. The purse design is a good one; variations on that theme have been made by many gun purse manufacturers, without, as far as I have been able to determine, any other instances of this kind of failure.

The combination of factors that resulted in the accident were: going a long time between visually and tactically checking the gun's internal holster (checking just the external closure) and carrying things in or around the purse that may have worked the gun loose over time. We'll never know for sure.

Was Sara at fault?

To help Sara and her lawyer, I started asking my circle of knowledgeable friends and acquaintances for information, providing them with just the barest outlines of Sara's situation. Not surprisingly, one of the most common reactions, even from gun-people was to blame the victim, something like this: "How could she have not known, for 3 days, that her gun was lost? Wouldn't it have been obvious from the weight of her purse? How can you call this woman a responsible gun owner if she didn't take proper care and custody of her handgun?"

The small town's Police Chief also took this attitude. He was quoted in a newspaper article about the incident as saying, "She was careless. God knows how she wouldn't feel the weight of the gun missing from her pocketbook. Those kinds of handguns are not light. They have a lot of weight to them. You know it if you have it."

Actually, no, one can't always tell from the weight of a purse whether there is a gun in there or not. Sara's loaded gun weighed 1 pound 14 ounces. Her purse typically weighed at least 5 pounds without the gun. She carries a lot of "stuff" in there, including a beeper, two cell phones (personal and work), a big wallet, and so on. On the night in question, she was also carrying a bottle of water and some food in her purse, making it even heavier than usual, and she was carrying about 15 pounds of other equipment to her meeting. The gun was a small percentage of the total weight that she was carrying, and as such, its sudden absence would not necessarily be missed.

Speaking from personal experience, I have carried a gun concealed for many years, and I often carry in a purse. Though my purse is smaller than Sara's, and my gun about the same weight, sometimes I cannot tell by simply hefting my purse whether the gun is there or not; I have to visually check.

Think of all the things that you sometimes carry in your purse. Things like sports drinks, books, CDs, gloves, scarves, flashlights, calendars, pepper spray, photo albums, cameras, fruit juice, bottled water, knitting projects and children's toys. Are there some times when you would not be aware of the difference in weight of a small gun?

I'm not surprised that Sara did not detect the difference in weight when the gun first fell from her purse, or later. However, men who had no experience carrying a purse, with or without a gun, were leaping to the wrong conclusion about what Sara "should have known".

Just as there are two kinds of unintentional discharges of guns, accidental (usually due to equipment failure) and negligent (due to someone not being careful enough), the unintentional exposure of a handgun that is supposed to be concealed can be the result of either equipment failure or personal negligence. In Sara's case, I absolutely believe it was the former.

Such accidents with gun purses are very, very rare. Incidents of guns falling out of regular purses (not specifically made for guns) and fanny packs are slightly more common, so the fact that she chose a gun purse indicates that she had selected one of the safest, most reliable methods of concealed carry, and paid a premium price for it, too. What happened was an accident caused by a combination of events that could not have been predicted.

The effect on Sara

Sara was in agony. She had done everything she thought she needed to do, and more, to keep her gun secure for more than ten years. And then this happened. The thought of her gun sitting on the ground in a parking lot where anyone, including a child, could have found it was absolutely chilling. She thought endlessly about what happened. She couldn't sleep, she couldn't eat, she couldn't concentrate. She lost interest in her usual activities, and could barely drag herself to work each day. She found no pleasure in anything she did. She experienced many of the same effects that people do after a critical incident, sometimes turning into Post Traumatic Stress Syndrome.

To add to her stress, her license to carry firearms was coming due for renewal. While her license was suspended, could she apply for a renewal? Could the charges resulting from the accident be resolved before she had to reapply for her license? Would the renewal be approved?

Show Cause Hearing - July

The gun storage law Sara was charged with breaking was relatively new, and precedent under Massachusetts state courts has yet to be established. The clerk magistrate didn't even know exactly what the law said; a brief flurry of running around produced a copy of the law itself, which was clearly new and unfamiliar to the court.

Sara's lawyer tried hard to prevent the charges from being filed. "I have never had a client so contrite," Attorney Cohen explained, but to no avail. Sara's spotless record was irrelevant. One question was asked repeatedly, "Why was she carrying a gun in her purse?" Did that mean why was she carrying at all, or why did she choose that method of carry? Cohen answered the former, with the self-evident and all-inclusive "self-protection" reason. He pointed out that no matter what happened, no judge or jury was going to throw the book at this woman.

The police officer who was there to explain the charges said that the police didn't care what the ultimate outcome was, they just wanted a charge to be on her record that she would have to explain for the rest of her life whenever and wherever she applied for a renewed firearms license. The next step was an arraignment.

Arraignment - August

Just like on TV, this was a very quick appearance in front of a judge. Attorney Cohen waived reading of the charges, so nobody in court except the court personnel even knew what this was about. Now Sara had to endure another long wait until the next step.

Pre Trial Conference - September

The DA offered to let Sara off (called Continued Without Finding) if she would admit guilt. Though her stomach was tied in knots from the inevitable delay, she declined the offer, not wanting admit guilt for something that she felt was an accident , and wanting a resolution that would not affect her ability to get a firearms license in the future.

Attorney Cohen then filed a motion to have the case dismissed. The next step, arguing the motion before a judge, would have to wait for another month.

Hearing on Motion to Dismiss - October

Finally, her lawyer and the prosecutor appear in front of a judge, arguing the motion to dismiss. Cohen argued that there was no precedent in state court for application of this statute to this set of facts. He cited a case from the United States District Court which held that violating the gun storage law "requires the violator to have a guilty state of mind" (Costerus v. Neal, 2001 U.S. Dist. LEXIS 3295). In other words, for Sara to have violated the storage law, she would have to have intended to leave the gun unsecured, but nobody was asserting that Sara intentionally left her gun on the ground in the parking lot.

Cohen emphasized that this is not a negligence case. He asserted that unfortunate, unintentional loss doesn't fall under the statue dealing with firearm storage.

The lawyer who appeared for the prosecution is also a police officer, which may have increased his credibility with the court. He argued that legislators can put the word "knowingly" in a statute if they want to make sure that intent is required, but they did not do so in this statute, so the interpretation should be "strict liability."

The prosecutor admitted that while she was carrying the gun, the "stored or kept" part of the statute did not apply. He argued that as soon as she lost the gun it was not stored but it was still "kept" in the sense that she still owned the gun regardless of where it was, and that "kept" in this statute means the same as "owned."

The judge seemed unusually interested in this case. Who wouldn't be, after the nearly endless procession of petty thieves, druggies, assaulters, and traffic violators that makes up most of his daily docket? It is a rare opportunity for a judge to be virtually the first in the state to be involved in the application of a new law. This judge was paying careful attention; he wanted to get it right.

The judge interrupted with an important question that showed that he understood both Sara's situation and the intent of the law. The gist of his question was, "What if she had been carrying the gun in her pocket on the street and it fell out in front of a police officer? Would he just pick up the gun and return it to her, or would she be charged with improper storage at that moment?" The prosecutor didn't want to answer that one, but when pushed, responded "improper storage."

Now it is nail-biting time. The judge will render his decision on the motion to dismiss within a month.

Decision on Motion to Dismiss - November

As if drawing things out to the maximum time just to make the principals anxious, the judge took a full month to issue his decision. When the decision came, it was worth waiting for: case dismissed.

The judge clearly understood the issues and made the right decision. In Massachusetts, a lawfully-concealed gun that is accidentally dropped in a public place does not violate the state's safe gun storage law. The unintentional loss of control is key here, as is the distinction between "carrying" a gun and "storing" one.

We can only hope that the police took note of the judge's decision, so that they will not try to apply the gun storage law inappropriately ever again. Nobody else should have to go through what Sara has gone through for the more than six months.

Aftermath

Since Sara was never arrested (she was issued a citation), she can still answer "No" honestly to any employment questionnaires that ask this question. Anyone who looks for her criminal record will find that the charges were dismissed. She will, however, have to answer "Yes" if asked whether her firearms license has ever been suspended.

She will apply to get her license and guns back as soon as the order of dismissal is in the state's record system. She has been assured by the police in her home town that she will be able to renew her unrestricted License to Carry as soon as the dismissal is entered into the state records.

Sara is relieved, but still exhausted and frustrated. She says, "Remember what the officer said at the first meeting, 'I want to make sure she has to explain this wherever she goes.' That indicated to me that they knew it wouldn't stick, but wanted to find some way of punishing me even though it's not legally possible. Which to me, sounds like 'judge, jury and executioner' all in one. I'm still infuriated about that."

Lessons Learned

Even if you aren't at fault, and even if nobody is hurt, having an accident with a concealed handgun takes a big toll on the owner. This includes the time it takes to find and use good counsel, the legal bills to be paid, and the exhausting emotional toll of preparing for and going through multiple legal steps at a snail's pace. Many people inside the legal system and out will assume that you are to blame, regardless of what really happened. Get the best people you can to help you make your case.

When you buy good quality equipment and use it for years and it works perfectly for years, it is reasonable to expect that it will continue to work. This is especially true of the systems that we depend on for discrete, reliable concealed carry. If you carry in a place where you don't have touch your gun every day - this would include not just purses but other containers such as briefcases, backpacks, day planners, and fanny packs - then you should occasionally do a visual check to ensure that the gun is where it should be, and that whatever holds it in place is working properly. Don't count on heft or a quick feel to give you this information. Use your eyes, too.

Are zippered closures safer than Velcro for gun purses? Not necessarily. Zippers can catch on something and be opened in a second. I've not heard of this actually happening, but it is clearly a possibility. Both zippered gun purses and Velcro ones can be good, safe, highly concealable, very reliable carry methods for women who, for a variety of good reasons, do not choose an on-body holster. If you don't take your gun out of the purse every night to put it in a lock box or some other secure storage, just be sure you check the internal gun compartment occasionally to ensure that the gun and internal holster are still where they should be.